MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            25 August 1999                  
	DOCKET NUMBER:   AR1999022826

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Allen L. Raub		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, physical disability retirement.  

APPLICANT STATES:  That he was medically unfit for duty at the time of his release from active duty because of organic brain disorder caused by or aggravated by service incurred hypertensive cerebral vasculopathy.  He states that he has an unrelated application which he filed in June 1992, but has received no information on any action taken on that application.  NOTE:  The Board  denied his request on 18 September 1996 (COPY ATTACHED).  

He states that he was found fit for duty at the time of his release from active duty, albeit the Deputy Chief of Staff for Clinical Services at Fort Eustis informed his civilian employer at the VA Medical Center in Coatesville, Pennsylvania that he had an organic brain disorder, was an impaired physician, who could only practice under direct supervision.  He states that this information was false; however, the VA has refused to reinstate him to his pre-service status as a physician, and a VA medical standards board, over his strenuous objections, found him unfit by reason of organic brain disorder.  He appealed.  His consulting neurologists advised him that he was fit and that the alleged deficits were not disqualifying but consistent with the normal aging process, and this was consistent with the findings of the Army at Walter Reed.  His appeal was denied and he was discharged (medically retired) effective 15 February 1997.

He appealed to the U.S. District Court in Philadelphia, submitted to independent evaluations by a neurologist and a neuropsychologist, and based on their reports he decided to dismiss his appeal, surrender his medical licenses in Pennsylvania and Oregon, and apply to this Board for correction in that the Army’s analysis of his medical status in December 1992 was in error. 

The applicant and counsel submit 25 exhibits with the application.  The applicant goes on to say that the Army’s duplicity lulled him into the mistaken belief that he was fit for duty. 

COUNSEL CONTENDS:  That the applicant was medically unfit for duty at the time of his release from duty on 1 January 1993, due to organic brain disorder, and that he should receive permanent disability retirement effective on that date with all due pay and allowances therefrom. 

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was appointed a Reserve commissioned officer in the grade of Major, Medical Corps, on 25 July 1985.  On 24 May 1998 the applicant, then a member of a Reserve hospital in Folsom, Pennsylvania, was promoted to lieutenant colonel, with a date of rank of 24 July 1986.

The applicant entered on active duty for three years on 2 January 1990 and was assigned as an internist with the Army medical department activity in Nuernberg, Germany.

An officer evaluation report (OER) for a four month period ending in May 1990  indicates that the applicant had demonstrated performance deficits including a decrease in his capacity to grasp concepts, apparent knowledge deficits, difficulty performing under stress, and decreased judgment and adaptability.  That report indicated that the possibility that he might have a medical condition which would explain those deficits was being evaluated.  His senior rater stated that the applicant had been unable to perform to his full capabilities and that his poor performance might have a medical basis.  His potential in the Army medical department was tenuous at best and non-existent based on preliminary medical studies. 

The applicant appealed that report stating that the rater’s comments were inconsistent with the results of a psychiatric and neuropsychological evaluation conducted in May 1990, which indicated no evidence of neurological disorder or psychiatric disease and that test results were consistent with a mild cerebral deterioration attributable to normal aging process, except for a mildly increase deterioration in organization and simultaneous consideration of multiple stimuli and their impact upon memory and everyday living situations.  He stated that the neuropsychologist recommended that he be retained as a physician.

The 18 September 1996 Board memorandum of consideration indicates that his clinical privileges were placed in abeyance and he was assigned to non-clinical duties pending a review by a credentials hearing committee.  That committee unanimously recommended that the applicant’s category III internal medicine privileges be revoked, among other recommendations.  The commander deferred a decision until a neuropsychlogical evaluation could be completed.  The applicant was referred to Walter Reed, and an evaluation indicated patterns of deficits which were consistent with organic brain dysfunction, but the diagnosis was inconclusive.  The commander then determined that the applicant’s clinical privileges would be reduced to those deemed appropriate for a general medical officer working under direct supervision.  He appealed and The Surgeon General denied his appeal.  The applicant was transferred to Fort Eustis, Virginia on       12 May 1990 for duty as a general medical officer and granted general medical and emergency room privileges under supervision. 

The applicant’s officer evaluation reports while at Fort Eustis indicate that he was a general medical officer at McDonald Community Hospital, and that he performed his duties adequately.  His senior raters on the five reports he received rated him below center of mass in the potential evaluation portion of those reports.

A 26 June 1990 medical record indicates that the applicant was functioning below levels predicted by premorbid academic achievement.  There were mild inefficiencies in the retrieval of information, and that dementia could not be ruled out as the pattern of deficits was consistent with an organic brain dysfunction.  It was possible, however, that the etiology of his difficulties could be related to increased stress or other functional disturbance.

In a 21 January 1991 neuropsychological evaluation conducted at Walter Reed Army Hospital, the Director of neuropsychology stated that the results of the evaluation suggested the presence of neurobehavioral inefficiencies, that the applicant was functioning within the average range of intelligence, but demonstrated deficiencies on tasks (words omitted) sustained auditory attention and concentration, motor speed, strength, and higher order visuomotor and visuo-sequencing skills requiring mental flexibility and concentration.  While such findings were consistent with depression or anxiety, they might also be indicative of early dementia.  Although the etiology could not be determined at that time, a comparison with previous neuropsychological testing did not suggest an acute cognitive decline.

A 6 October 1992 report of medical examination indicates that the applicant was medically qualified with a physical profile serial of 1 1 1 1 1 1.  In the report of medical history he furnished for that examination, the applicant stated that he was in good health.  A medical officer who reviewed that report indicated that the applicant had no significant disqualifying abnormalities.

In a 9 October 1992 letter to the VA at Coatesville, the deputy commander for clinical services at Fort Eustis stated that the applicant was a general medical officer who had to work under the direct supervision of another physician, that he was very insecure in his practice of medicine, and did not demonstrate the expertise to handle a “code” situation.  He could only be trusted to handle routine general medical officer type problems.

The applicant was released from active duty on 1 January 1993 upon the expiration of his term of service and returned to his Reserve unit in Folsom, Pennsylvania.

In a 23 January 1993 psychological-neuropsychological evaluation requested because prior evaluations raised the possibility that the applicant suffered from organic brain syndrome which compromised his ability to practice internal medicine, Dr. Gerald Cooke, a licensed psychologist in Plymouth Meeting, Pennsylvania, interviewed the applicant and administered eight tests to him.  That doctor opined that the applicant was suffering from an organic mental syndrome with amnestic features, and while the etiology was unclear that there was no history of trauma, exposure to toxic substances, etc., that would account for such deterioration, some sort of pre-senile dementia should be considered.  
A 17 March 1993 brain scan indicated that there was a moderate degree of cerebral, and to a lesser extent cerebellar atrophy, among other impressions.

In a 16 April 1993 neurological consultation, Dr. David Cook of the Elliott Neurological Center of the Pennsylvania Hospital, stated that the applicant’s MRI revealed some minor abnormalities fully consistent with his history of hypertension.  The applicant’s basic evaluation for treatable causes of dementia was benign.  He stated that on the basis of his mental status evaluation, he could not clarify the extent to which the applicant was suffering from cognitive dysfunction; however, the results of his psychological testing appeared to document a definite problem with cognitive functioning, calling into question the applicant’s ability to perform as a specialist physician responsible for patient care.  In a 4 May 1993 letter to an official in the VA, that same doctor stated that he was in receipt of additional information, including two separate neuropsychological evaluations, both performed in 1990, however, it was difficult for him to compare the results generated in 1990 with those obtained by Dr. Gerald Cooke in January of 1993, but it appeared that the applicant had difficulty with progressive cognitive dysfunction over the course of the last few years. 

In an 11 May 1993 letter to an official in the VA, Dr. Gerald Cooke stated that he had reviewed the neuropsychological reports and raw data on the applicant from 1990 and 1991 and those findings were consistent with the findings on his evaluation which resulted in a diagnosis of organic mental syndrome with amnestic features.

In a 20 October 1993 report, Dr. John Smothers, a clinical psychologist, tested and evaluated the applicant for the purpose of describing and assessing his levels and patterns of intellectual functioning, his attention and concentration, sensory acuity and perception, cognitive adaptive skills, and executive operations mediated by cortical functions; and to evaluate his current state at they compared to prior assertions concerning his intellectual functioning.  That doctor stated that the applicant had superior intellectual functioning, that he did show variability in his intellectual operations, showed strength in general verbal comprehension, abstract thinking skills, and in adaptive planning skills.  He displayed minimal neuropsychological impairment and demonstrated difficulties with focused concentration and immediate recall.  He showed trials with sensory recognition tasks and with complex integrations of tactile and motor actions.  He could be experiencing cortical imbalances associated with his history of hypertension which was under treatment.  He did not show difficulties with higher order cognitive operations nor show that he had lost the ability to retain or retrieve information which he had previously learned.  He did show slips in more focused and immediate retentive processes and might have to exert extra caution.  He also showed slips in tactile recognition and in motor speed.  His inefficiencies in those areas might not be of such limiting importance in his work in internal medicine.    
In a 3 November 1993 report, Dr. Peter G. Bernard, board certified, internal medicine, neurology, stated that he reviewed the entirety of the medical records of the applicant, and reviewed Dr. Smothers’ report which indicated that the applicant was certainly not demented and did not suffer from a dementing illness. He stated that the applicant had some variability in his intellectual operations, that he had valuable strengths, and seemed reliable and consistent about demonstrating his knowledge.  When he slipped with some materials he was quickly able to recognize and correct his errors.  There were some indications of minimal neuropsychological impairment in performance which had to do with rapid alternating movements and rapid movements of the fingers and tasks.  Thee were slight adverse findings implicating slowing and motor speed.  He concluded by saying that the applicant was not demented.

On 28 September 1994 the VA notified the applicant that has claim for service connected disabilities for hearing loss in the left ear, rheumatic heart disease, neurodermatitis, stress condition, and seasonal rhinitis, was not established.  Service connection for hypertension, hearing loss in the right ear, and gout were service connected; however, they were zero percent disabling.  

On 5 October 1994 a VA physical standards board met to determine whether the applicant met the physical requirements of his position as staff physician at the Coatesville VA medical center.  The applicant had submitted for review a neuropsychological evaluation performed by Dr. John Smothers and a neurologic evaluation performed by Dr. Peter Bernard.  All four neuropsychological test reports were sent by that board for review to a license psychologist, who found them to demonstrate significant disturbance in brain functioning; confabulatory qualities to memory recall; poor attention and concentration; slowed speed of processing information; sensory-perceptual disturbances; and variability throughout evaluations; which were serious detriments to his functioning as a physician on a regular basis.  That board indicated that there was enough evidence to support a diagnosis of dementing syndrome of a progressive, organic type, and felt that the applicant was unable to function safely as an independent physician.  The board recommended that the applicant be separated for disability or disability retirement as appropriate.  The board’s recommendation was approved and the applicant was advised that he would be separated for disability effective in January 1995.

Officer evaluation reports in the applicant’s record show that he continued to serve in a Reserve unit at least through 15 September 1995, the ending date of the latest OER contained in his record. 

On 22 January 1997 the VA notified the applicant, in response to an apparent appeal, that the recommendation that the applicant would be separated for disability had been sustained and that his separation would be effective on          5 February 1997.  The VA reviewing board indicated that the evidence supported a diagnosis of dementing syndrome of a progressive, organic type which rendered the applicant unable to function safely as an independent physician.  There was persistent evidence in the form of neuropsychological test results performed by various clinicians since 1990 to suggest that the applicant had impairment in the terms of attention and concentration, information processing, memory function and sensory perceptual disturbances, and in the interest of patient safety, it was reasonable to separate him for disability.

In an undated affidavit to the district court in Pennsylvania, the applicant requested a temporary restraining order, stating that the respondents used false information to deny him his rights of restoration to full duties as a medical officer. He stated that he was a fully qualified physician, that throughout his career at the VA medical center at Coatesville, he had been repeatedly subject to medical examinations confirming his continuing fitness for duty.  He had been examined and re-examined by Army medical officers and found to meet the medical standards of the Army Reserve and consistently been determined medically fit.  In October 1992, incident to his release from active duty, he was again examined and determined medically fit, and that the medical standards for fitness for duty in the Army were more rigorous that the standards for fitness for duty in the VA.  He stated that on or about January 1993 he was physically examined by a VA staff physician and no disqualifying defects were noted.  In September 1994 the VA denied his application for service incurred disabilities for neurodermatatis and stress condition.  He stated that he had been found fully fit for duty by Army medical authorities who determined that symptoms suggestive of organic brain disorder, were at best, inconclusive and more consistent with the normal aging process.  He stated that when he reported to the VA in January 1993, even after a physician found no disabling defects, he had to undergo a neuropsychologic consultation, in which he indicated that the results of that consultation were false, inaccurate, and defective.  The applicant went on to state that the physical standards board was improperly constituted, convened, and conducted, that the conduct of a VA official was racially motivated, and that he had requested correction of his military records with respect to the Nuremberg events.  He requested that the court order and direct his immediate reinstatement to full privileges as an internist at VA Coatesville.   

The applicant’s attorney also appealed to the aforementioned court.  In his affidavit, counsel indicated that he was personally familiar with the Army’s medical and neuropsychologic evaluation of the applicant, having reviewed his medical records with several Army and civilian physicians, and that on or about September 1990 he met with the Chief of the Internal medicine clinic at Walter Reed, and that officer stated that he had reviewed the applicant’s medical records and with both the chief neurologist and the chief neuropsychologist, who both assured him that the applicant was not disabled and that the initial observation so suggesting was questionable at best, and that the applicant was medically fit.  He stated that he and his staff had carefully observed and supervised the applicant throughout his assignment to the internal medicine clinic, and had observed nothing to suggest that the applicant was in any sense disabled, or evidenced signs of an organic brain disorder.  He stated that the applicant was a competent doctor, but his skills in internal medicine were dated, and that he spent too much time with patients.  The attorney continued in his affidavit, requesting reinstatement to his status and duties, and compensatory and punitive damages in the amount of twenty nine million dollars, plus attorney fees and other expenses. 

The applicant was supported by a Dr. John Smothers, a psychologist licensed and practicing in the state of Maryland, who in his affidavit to the court, stated that the false and inaccurate information concerning the applicant’s life style would adversely affect the result of the neuropsychologic test evaluations conducted by the VA neuropsychologic consultants.  He stated that the findings and recommendations of the VA neuropsychologic consultants were flawed and unreliable and that the applicant was fit for duty from a neuropsychologic perception.

In a 1998 medical evaluation report, Dr. Jason Brandt, professor of psychiatry and behavioral sciences at Johns Hopkins, indicated that the applicant was functioning in the average range of psychometric intelligence, which was problematic for a man with two doctoral degrees.  He had several significant deficits in specific cognitive domains.  He performed poorly on tasks requiring rapid processing, working memory, or tracking multiple ideas simultaneously, and those tasks were extremely difficult for him.  Nonverbal, visuospatia learning, and memory were particularly severely impaired.  He stated that given the nature and severity of the applicant’s neuropsychological deficits, it is inconceivable that he could practice internal medicine competently.  It was likely that he was disabled from any gainful employment.

In an 30 June1998 medical evaluation report, Dr. Barry Gordon, a neurologist at Johns Hopkins, in addressing whether or not the applicant’s neurologic/neuropsychologic history and/or status in mid-1993, and also at that present time, were such that it would have been reasonable to question his competency to practice medicine, provided the relevant history based on the available records and those provided by the applicant.  His impression was that by mid-1993 there was additional evidence of structural brain impairments, that at the current time there was clear evidence of neurologic and neuropsychologic impairments, with the most underlying etiologies of those documentable impairments being hypertensive cerebral vasculopathy (most likely), microemboli from his rheumatic heart disease (less likely), and aging (less likely, but possible).  He stated that the problems noted at the current time were definitely significant, but in themselves did not necessarily make the applicant incompetent to practice medicine; however, the nature and degree of those deficits and the possibility that he suffered from more pervasive problems, called his competency into question. 

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 635-40, paragraph 3-2b, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform her duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.  Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  Apparent throughout this case is the attempts by the applicant, and after his release from active duty in 1993, both the applicant and counsel, to prove that there was nothing wrong with him (the applicant), that he was medically fit and competent to perform his duties as a doctor.  Nowhere is this more apparent then in the information contained in the affidavits, which the applicant has furnished with his application, in which he and counsel stressed again and again that he had been determined to be medically fit for duty.  However, the applicant has stated that he withdrew his appeal to the court protesting his discharge from his VA position, based on independent evaluations by a neurologist and a neuropsychologist; and has apparently changed his mind and decided in 1998, five years after his release from active duty, to petition this Board for physical disability retirement.  

2.  Nonetheless, service medical records do not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty.  The applicant entered on active duty on 2 January 1990, underwent various psychiatric and neuropsychological evaluations in 1990 and 1991, and remained on active duty until his release upon the completion of his service obligation on 1 January 1993. At the time of the separation physical examination, competent medical authority determined that the applicant was then medically fit for retention or appropriate separation.  Accordingly, the applicant was separated from active duty for reasons other than physical disability.  Neither the applicant nor counsel has submitted any probative medical evidence to the contrary.                                         
3.  Furthermore, the applicant's continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.

4.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

5.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

6.  The applicant did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___lls_____  ___le___  ___alr__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999022826	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990825	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 108.00		
2.		
3.		
4.		
5.		
6.